Citation Nr: 19123766 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 16-33 816 DATE: April 2, 2019 ORDER Entitlement to service connection for ischemic heart disease is granted. Entitlement to service connection for type II diabetes mellitus is granted. REMANDED Entitlement to service connection for erectile dysfunction (ED), to include as secondary to the type II diabetes mellitus is remanded. FINDINGS OF FACT 1. Based on his competent and credible assertion of having served in close proximity to the perimeter of the Ubon Royal Thai Air Force Base in Thailand from July 1969 to January 1970, and resolving all reasonable doubt in his favor, the Veteran is presumed to have been exposed to herbicides during active service. 2. The Veteran has type II diabetes mellitus which is presumed to be related to his exposure to herbicides during his active service in Thailand. 3. The Veteran also has ischemic heart disease, specifically coronary artery disease (CAD), which also is presumed to be related to his exposure to herbicides during his active service in Thailand. CONCLUSIONS OF LAW 1. The criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309 2. The criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1966 to June 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from May 2014 and May 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Procedurally, a May 2015 rating decision misconstrued the issues on appeal as whether new and material evidence had been received to reopen the previously-denied claims for service connection for ischemic heart disease and type II diabetes mellitus. These claims were initially denied in a May 2014 rating decision; however, the Veteran submitted new claims for benefits and accompanying evidence in February 2015, less than one year later. As such, the May 2014 rating decision did not become final. Therefore, the submission of new and material evidence is not required. See 38 C.F.R. § 3.156(b). Instead, the matters on appeal are properly construed as claims for service connection.   Service Connection 1. Entitlement to service connection for heart disease 2. Entitlement to service connection for diabetes Service connection is granted for disability resulting from disease or injury incurred in or aggravated during active military service in the line of duty. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection still may be granted if the evidence, including that pertinent to service, establishes the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Lay assertions may also serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence such as treatment records). The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including type II diabetes mellitus and ischemic heart disease, shall be presumptively service connected if it becomes manifest to a degree of 10-percent disabling or more at any time after service. 38 C.F.R. § 3.307(a)(6). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam or other specified locations during the Vietnam era. 38 C.F.R. § 3.307(a)(6). First, however, a Veteran must show that he served in the Republic of Vietnam during the Vietnam War era or at some other location where Agent Orange was used or sprayed. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e). Brock v. Brown, 10 Vet. App. 155, 162-63 (1997). As already alluded to, type II diabetes mellitus and ischemic heart disease (which includes CAD) are presumptive diseases listed in § 3.309(e), and the Veteran’s medical records document his treatment for these conditions. So there is no disputing he has these conditions. Rather, resolution of this appeal turns, instead, on whether they are attributable to his military service – especially to Agent Orange exposure in Thailand. VA has established specific procedures for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1.IV.ii.1.H.5. VA has determined there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era from February 28, 1961, to May 7, 1975. See M21-1.IV.ii.1.H.5.b. Notwithstanding, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans’ Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). See also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). Based on review of the relevant evidence of record, the Board finds that service connection for type II diabetes mellitus and ischemic heart disease is warranted on a presumptive basis. As detailed below, the evidence is at least in relative equipoise as to whether the Veteran was exposed to herbicides during his active duty service. To reiterate, the Veteran’s post-service medical records confirm he has been diagnosed with Type II Diabetes Mellitus and ischemic heart disease, which are among the conditions presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). Thus, the pertinent question is whether he was, in fact, exposed to herbicides during his active duty service and, in particular, while stationed in Thailand. The Veteran contends that he developed type II diabetes and ischemic heart disease from exposure to Agent Orange while serving at the Ubon Royal Air Force Base in Thailand. His military personnel records confirm that he served there from July 1969 to January 1970, and that his MOS was Aircraft control and warning operator. Aircraft control and warning operator is not one of the MOSs listed in the MR21-1MR as presumed to have been performed at or near an air base perimeter. However, the Veteran has indicated that he was also a courier. He reported that he worked directly on the perimeter at the radar site. He stated that he was required to go to the flight line, located on the perimeter, and pick up daily fragments to be decoded. He also reported flying to all the Air Force bases in Thailand. The Veteran’s service personnel records (SPRs) confirm that he performed duties as a top-secret control agent. They show that his duties included receiving, recording and controlling all top-secret materials for all offices and acting as a courier for all top-secret messages between the base communication system and tactical control squadron. Although there is no record of assignment to perimeter duty, the Board finds the Veteran’s assertions regarding time spent near the perimeter of the Ubon Royal Thai Air Force Base to be credible. Therefore, as there is no basis on which to question his credibility and no evidence in the record contradicting his claims of perimeter contact, the Board finds that he as likely as not was exposed to herbicide agents while stationed at the Ubon Royal Thai Air Force Base during the Vietnam era. Affording him the benefit of the doubt, the Board finds that his type II diabetes mellitus and ischemic heart disease therefore can be presumed to be consequences. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to service connection for ED, including as secondary to the Type II Diabetes Mellitus, is remanded. The Veteran contends that his ED is secondary to his Type II Diabetes Mellitus, in other words a complication of it. As already discussed, service connection has been granted for the Type II (adult-onset) Diabetes Mellitus in this decision, also for the heart disease. VA has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This duty includes obtaining a medical examination or opinion if necessary to make a decision on the claim. 38 U.S.C. § 5103A (d)(1); 38 C.F.R. § 3.159 (c)(4). As the Veteran has not been afforded a VA compensation examination for a medical nexus opinion addressing his contention of a relationship or correlation between his diabetes and ED, development for this opinion is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination by an appropriate physician. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's ED was caused by his service-connected Type II Diabetes Mellitus and/or heart disease? b.) If the Veteran's ED was not caused by his service-connected Type II Diabetes Mellitus and/or heart disease, is it at least as likely as not that his ED alternatively is being aggravated by his Type II Diabetes Mellitus and/or heart disease? If the physician finds that the Veteran’s ED has been aggravated by the service-connected diabetes and/or heart disease, he or she should attempt to quantify the degree of aggravation beyond the baseline level of disability of the ED. The examiner must be certain to comment on causation AND aggravation and include rationale with all opinions. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel